Constitutional duty to Malama `Aina extends to military leased lands

There is precedent for a ruling in court case Ching v. Aila to force the DLNR to investigate and take all necessary steps to ensure military compliance with the lease terms of the Pohakuloa Training Area on Hawaii island.

Each branch of government within the State of Hawaii—the executive, legislative and judicial—has an affirmative duty to take active steps to conserve and protect public lands. In the Hawaiian language this duty is known as “malama `aina.”

The State’s duty to malama `aina began in 1959 with the Admissions Act under which the Federal Government transferred public lands to the State of Hawaii at statehood. These lands, commonly referred to as “ceded lands,” have a special “public trust” status that restricts the lands’ use to only a few express purposes.

In 1978, the people of Hawaii voted for changes to the Hawaii State Constitution that established an even higher standard of care for the State’s natural resources. Under Article XI, Section 1, the State has a duty to protect all natural resources and hold them in trust for the benefit of present and future generations.

Although constitutional protections extend to all State lands, several lands formerly leased by the United States for military use are now inaccessible to the public. For example, in Waikane Valley, where live-fire training ceased more than 50 years ago, dangerous unexploded ordinances remain in the leased area preventing public enjoyment of trust resources. In addition, on Kahoolawe, even after many years of litigation and restoration, 25 percent of the surface of the island, 90 percent of the subsurface, and all of waters surrounding the island, are unsafe and inaccessible to the public due to unexploded ordnances.

In light of past experiences with military use of public trust lands, careful stewardship of these resources is critically needed at every level of State government.

An important court case is currently underway that seeks to compel the State to execute its trust responsibilities preemptively to avoid the loss of additional land resources. Ching v. Aila is an action for breach of trust brought by plaintiffs represented by the Native Hawaiian Legal Corporation. The action concerns the State’s duties as the trustee and landlord of lands leased to the United States for military use at Pohakuloa Training Area (PTA) on the island of Hawaii.

In 1964, the State entered into an agreement with the United States to lease three parcels of the ceded lands trust, totaling nearly 23,000 acres, at Pohakuloa. The Department of Land and Natural Resources (DLNR) manages the sixty-five year lease, which ends in 2029. The lease requires the lessee to “make every reasonable effort to ... remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner,” and to “remove or bury all trash, garbage or other waste materials.”

In Ching v. Aila, plaintiffs assert that the DLNR has a trust duty to investigate and take all necessary steps to ensure compliance with the lease terms. Plaintiffs request that the DLNR monitor the lessee’s progress on the cleanup provisions throughout the lease term rather than allow the lessee to delay cleanup until the end, especially where the cost of a one-time cleanup may exceed the Federal government’s economic capabilities.

As the combined acreage of the PTA leases is comparable in size to the total acreage of the island of Kahoolawe, and on Kahoolawe the economic resources needed to clean the island have fallen far short, plaintiffs in Ching v. Aila seek to ensure that proactive measures are taken at PTA.

Beyond constitutional law, Hawaii Supreme Court precedent also reinforces the State’s duty to malama `aina as the trustee and landlord of the ceded lands. In State v. Zimring, Chief Justice William S. Richardson explained, “under public trust principles, the State as trustee has the duty to protect and maintain the trust property and regulate its use.” Moreover, in Pele Defense Fund v. Paty the Court held the State to the same strict fiduciary responsibility as a private trustee in dealing with trust lands. In Estate of Dwight, the Hawaii Supreme Court concluded that a private trustee breached its duties when it failed to examine the lessee’s maintenance records, neglected to conduct inspections, and did not check the condition of the property. By failing to take any action to ensure compliance with the terms of a lease, a lessor jeopardizes the integrity of the trust assets.

Perhaps the most valuable asset held in trust for future generations is the State’s land. Through the Hawaii State Constitution, the wisdom of the courts and legislature, and diligence of the State’s DLNR, valuable land resources remain intact for present and future generation. At PTA, the State can takes steps to ensure compliance with lease provisions and avoid further loss of trust resources. Indeed, at PTA, as on all public lands, the State has a duty to malama `aina.

Rhiannon Chandler-`Iao is a student at the William S. Richardson School of Law at UH Manoa.